Applying for a Visa for a Fiancé or Spouse of a U.S. Citizen
K-1 Fiancé Visa
A U.S. citizen (USC) can petition their fiancé and apply for a K-1 non-immigrant visa. The USC files Form I-129F to the USCIS with the required evidence. Once the K-1 visa is approved, the file is sent to the National Visa Center (NVC) for further processing. The NVC will thereafter send the file to the U.S. consulate of the fiancé’s home country and begin consular processing. The fiancé will enter the U.S. with a K-1 non-immigrant visa under the condition that the USC and the fiancé will marry within 90 days of entry. The fiancé is immediately eligible to apply for an Employment Authorization Document (EAD) to legally work in the U.S. while waiting to marry.
Once married, the K-1 visa holder can for adjustment of status with all the supporting documents and forms. If the couple decides not to marry, the fiancé will have to leave the U.S.
If the fiancé has any dependent (under 21 and unmarried) they can also be granted K-2 visa. Upon marriage of the K-1 visa parent, adjustment of status can be concurrently filed with the K-1 visa parent’s application. If the couple decides not to marry, the minor child will have to leave the U.S. with his/her K-1 visa parent.
K-3 Spouse Visa
A USC can bring his/her spouse to the U.S. by having the spouse apply for a K-3 visa. To initiate the process, the USC will have to file a Form I-130 Petition with the USCIS. When the USC has the USCIS receipt of filing, s/he will have to file a Form I-129F to the USCIS for the K-3 Visa. Once the USCIS approves the K-3 visa, the file will be sent to the NVC for further processing. Once the file is complete, the NVC will send it to the U.S. consulate of the non-citizen spouse’s home country and begin consular processing. Once the K-3 visa is approved, the non-citizen spouse can enter the U.S. Once in the U.S., the non-citizen spouse can start the adjustment of status process to apply for lawful permanent resident status. A K-3 visa holder can apply for an EAD while waiting to begin the adjustment of status process.
Unmarried minor children (under 21) of K-3 visa holders who are children of the USC can join their K-3 visa parent and enter the U.S. with a K-4 visa. If the unmarried minor children are stepchildren of the USC, they have to be 17 years or below.
Conditional Lawful Permanent Residence Status
When a U.S. citizen or lawful permanent resident petitions a spouse and they have been married less than two years when lawful permanent resident status is approved, the spouse will receive a conditional lawful permanent residence status. The policy behind this requirement stems from what the U.S. government perceived to be an increase of sham marriages. Therefore, in 1986, the U. S. Congress passed the Immigration Marriage Fraud Amendment to include the conditional lawful permanent residence status for marriages that are less than two years when the spouse's immigrant status is approved.
To lift the conditional lawful permanent residence, an I-751, Petition to Remove Conditions on Residence can be filed 90 days before the second year anniversary of the beneficiary's conditional lawful permanent residence. If the U.S. citizen or lawful permanent resident (the original petitioner) and the spouse (the beneficiary) are still married, the I-751 must be filed jointly. However, a waiver of joint filing can be submitted if any of the following conditions are met:
- If the beneficiary spouse entered the marriage in good faith, but the petitioner spouse has died;
- If the beneficiary spouse entered the marriage in good faith, but the marriage was later terminated by divorce or annulment;
- If the beneficiary spouse entered the marriage in good faith, but the beneficiary spouse has been battered or subjected to extreme cruelty by the U. S. citizen or lawful permanent resident spouse; or
- If the termination of the lawful permanent resident status and removal from the U. S. would result in extreme hardship.
Once the I-751 is approved, the beneficiary will receive a ten-year lawful permanent resident "green card." If the I-751 is denied, the beneficiary may be placed in removal proceedings in Immigration Court. The beneficiary can then apply in Immigration Court to have the condition removed and received his/her permanent residency status.
Children of the beneficiary are also subject to the conditional lawful permanent residence status and can be included in the I-751 of their parent. Once the condition is lifted, then their conditional status will also be lifted.
Note: Obtaining a K Visa can be a complicated process and, therefore, it is advisable to contact an Immigration Attorney to ensure a higher probability of success in the K Visa process.